Supreme Court

No. 2018-21-C.A.

(P2/12-216A)

State :

v. :

Nicholas Haffner. :

NOTICE: This opinion is subject to formal revision before 

publication in the Rhode Island Reporter. Readers are requested to 

notify the Opinion Analyst, Supreme Court of Rhode Island, 250 

Benefit Street, Providence, Rhode Island 02903, at Telephone 

(401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any 

typographical or other formal errors in order that corrections may 

be made before the opinion is published.

December 17, 2020
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Supreme Court

No. 2018-21-C.A.

(P2/12-216A)

State :

v. :

Nicholas Haffner. :

Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

O P I N I O N

Justice Flaherty, for the Court. On March 27, 2017, a Providence County 

Superior Court jury found the defendant, Nicholas Haffner, guilty of assault with a 

dangerous weapon, to wit, a shod foot, and driving while intoxicated. He was 

thereafter sentenced to a term of five years at the Adult Correctional Institutions, 

with eighteen months to serve and forty-two months suspended, with probation. 

On appeal, defendant contends that the trial justice erred when she instructed 

the jury about the concept of aiding and abetting. He also argues that his so-called 

Frye hearing was conducted in error because the trial justice failed to include any 

discussion about aiding and abetting. For the reasons set forth in this opinion, we 

affirm the judgment of the Superior Court.
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I

Facts and Travel

On January 24, 2012, defendant was charged by criminal information with 

one count of assault with a dangerous weapon, a shod foot, and one count of driving 

while intoxicated (DUI). A jury trial commenced on January 26, 2017, but a mistrial 

was declared on January 31, 2017. 

A second jury trial began on March 21, 2017. Before the trial started, and 

because a plea offer had been made to defendant (which would have resulted in a 

disposition not requiring incarceration), the trial justice held a hearing to address the 

concerns raised in Missouri v. Frye, 566 U.S. 134 (2012).1 At the Frye hearing, the 

trial justice asked defendant if his lawyer had spoken with him about the elements 

of the charges that the state would have to prove beyond a reasonable doubt, and 

defendant responded, “Yes.” The trial justice then specifically inquired about the 

charge of assault with a dangerous weapon as follows:

“THE COURT: [D]id your lawyer talk to you about the 

definition of Assault With a Dangerous Weapon, what has 

to be proven?

“THE DEFENDANT: Yes, your Honor.

 

1 The purpose of a Frye hearing is for the court to inquire whether a plea offer has 

been made, what the specifics of the offer are, and whether the plea offer has been 

communicated to the client.
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“THE COURT: And that a shod foot, when used in a

certain manner, can indeed be considered a dangerous 

weapon?

“THE DEFENDANT: Yes, your Honor.

“THE COURT: And would you like me to tell you 

specifically what those elements are or are you satisfied 

that [your attorney] has gone over it with you?

“[DEFENDANT’S ATTORNEY]: Judge, I may add that 

we basically tried I would say approximately three 

quarters of this case before [a different trial justice]. Mr. 

Haffner stands before you this morning with the benefit of 

that experience, hearing the witnesses testify, for what it is 

worth.

“THE COURT: I’m aware of that. I want to make sure that 

whatever is done here doesn’t come back and bite 

anybody. 

“[DEFENDANT’S ATTORNEY]: Okay.

“THE COURT: In other words, I want to make sure he 

understands the elements of each of these counts and 

recommended amendments so that if he rejects the offer, 

because I will put it through as recommended, that he’s 

making a knowing, voluntary and intelligent decision. You 

understand what I’m saying, sir?

“THE DEFENDANT: Yes, your Honor. 

“THE COURT: Do you need any information before you 

determine whether to accept the offer?

“THE DEFENDANT: No, your Honor.

“THE COURT: Okay. Is it my understanding that you 

wish to reject the offer?
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“THE DEFENDANT: Yes, your Honor.” 

After defendant rejected the state’s offer, the trial began. 

Vincent Gieck, Jr., the complaining witness, testified first. He said that at 

11:30 p.m. on October 8, 2011, he had been at home with his girlfriend when he 

received a telephone call from a friend. In response to that call, he drove to the 

“sandpit,” a location that he described as a clearing in the woods where young people 

frequently gathered for parties. He said that his then-girlfriend, Kayla Baumlin, 

accompanied him and that they arrived at the sandpit within ten to fifteen minutes 

after he received his friend’s phone call. 

He further testified that, when he arrived, he and Ms. Baumlin walked over to 

a fire at which approximately thirty people were gathered, some that he knew, and 

some that he did not know. He said that he saw his friend Nathan Rogler, who was 

bleeding from a wound to his head. Mr. Rogler told him that he had been hit in the 

head with a bottle, and, Mr. Gieck testified, he then became angry and asked, “Who 

threw the bottle? Where did it come from? What was it?” Mr. Gieck said that one 

individual responded by “[j]umping up and down, cussing and swearing and yelling 

[and] generally being aggressive.” Mr. Gieck testified that the individual raised his 

hands up to his face and then “blows were exchanged” between he and that 

individual, with each man landing a few glancing punches on the other. He testified 
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that at that point, numerous other people joined in the fight and that he “was 

approached by several other people who were also swinging and grappling.” 

Mr. Gieck testified that he was confronted by three or four males, all of whom 

were approximately his age, and that he “was eventually knocked down, or taken 

down to the ground,” at which point he covered his “head to try to less[e]n some of 

the impact.” Mr. Gieck testified that, when the man who had first fought with him, 

who also had been knocked to the ground, regained his footing, he joined the other 

men in the attack. Mr. Gieck testified that at that point, the first man was directly in 

front of him, “throwing fists and kicking as well.” He testified that the man’s fists 

and feet were hitting his head and face and that the man’s feet were shod in light-duty 

work boots. 

Mr. Gieck testified that he was on the ground for two to three minutes and 

that, in that time, he was kicked approximately a dozen times. He testified that 

eventually a young woman lay on top of him to try to protect him from the punching 

and kicking, and finally he was able to get back on his feet. He said that he then 

made his way out of the sandpit and that he and Ms. Baumlin drove to his parents’ 

home in Glocester, arriving there at approximately 3:30 or 4 a.m. 

Mr. Gieck testified that his mother, who had been an army medic, dressed his 

wounds, and he went to sleep. He recounted that he went to the Burrillville police 

station the next morning around 10 a.m. and that he informed Officer Ryan Hughes 
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about what had occurred the night before. Officer Hughes notified Mr. Gieck that 

there was a suspect in custody and he asked Mr. Gieck to view the suspect through 

a security monitor to see if he could identify the suspect as his assailant. Mr. Gieck 

testified that he viewed the suspect and identified him “as the individual that was 

attacking [him] at the sandpit.” 

Mr. Gieck said that, after he finished his interview with the police, he went to 

Rhode Island Hospital to have his injuries treated. Those injuries included cuts and 

lacerations around his head and elbows, a fractured front tooth, some minor bruising 

and bruised ribs, and bruises on his head, face, and back. He made a courtroom 

identification of defendant as the man whom he had viewed on the monitor at the 

police station. Mr. Gieck also identified defendant as the person who had repeatedly 

kicked and punched him. 

Nathan Rogler was the next witness to testify. He testified that at around 

midnight on October 9, 2011, he was “off-roading” with a couple of friends near the 

power lines located between Burrillville and Glocester, when they came across a 

party. He described the party as a bonfire with music and approximately twenty-five 

to thirty people. He said that words were exchanged about the different high schools 

that he, his friends, and the partygoers had attended, when approximately three 

people started pushing and shoving him. He testified that he pushed somebody back 

and then that person smashed a bottle over his head. He recounted that, after he was 
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hit with the bottle, other people began kicking and hitting him, but eventually he got 

away from the group. Mr. Rogler then said that he called Mr. Gieck and told him 

what had occurred and that he needed help. 

He testified that Mr. Gieck told him on the telephone that he would come to 

the sandpit and that he arrived sometime later with his girlfriend, Ms. Baumlin. He 

testified that upon his arrival, Mr. Gieck asked Mr. Rogler who had hit him, and that 

soon a melee again broke out and punches were again thrown. He further testified 

that Mr. Gieck ended up on the ground, where he was punched and kicked by several 

people. Mr. Rogler said that he also ended up on the ground, but was nonetheless 

able to look up to see who was attacking Mr. Gieck. He described the assailants as 

three young white men, all approximately six feet tall. He added that eventually Mr. 

Gieck was able to scramble to his feet. 

Mr. Rogler said that, after the fight, he and his friends drove to the home of 

Mr. Gieck’s parents. He testified that the next day he went to the Burrillville police 

station and gave a statement to Officer Hughes. He also said that the police asked 

him to view a suspect who was in custody to see if he could identify him as one of 

the people who had been present the night before. Mr. Rogler testified that he 

recognized the suspect as one of those who had been hitting and kicking Mr. Gieck. 

He also made a courtroom identification of defendant as a person he had seen kicking 

Mr. Gieck. 
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Kathleen Wholey Rogler, another witness who attended the party, testified 

next and described a similar series of events. She testified that, on October 9, 2011, 

at around midnight, she was at the power lines in Burrillville off-roading with friends 

when she saw a fire surrounded by numerous people, so they stopped to see who 

might be there. She said that at first things were friendly, but about half an hour 

later, someone smashed a bottle over Mr. Rogler’s head and that he was bleeding. 

She said that Mr. Rogler then called Mr. Gieck, who arrived about twenty minutes 

later. 

She described that a big fight started soon after Mr. Gieck arrived and that 

both Mr. Rogler and Mr. Gieck ended up on the ground. She testified that she 

observed five or six white males hitting and kicking Mr. Gieck while he was on the 

ground, and that all the men kicking Mr. Gieck were wearing shoes. She also said 

that, before she and her friends left the scene, she noted vehicle license plates and 

then called both the Glocester and Burrillville police departments to notify them of 

the fracas. Additionally, Ms. Rogler recounted that, on the day after the incident, 

she identified defendant on a television monitor at the police station as one of the 

perpetrators from the night before. She also made a courtroom identification of 

defendant as one of the individuals she had seen kicking Mr. Gieck. 
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At a sidebar conference, the trial justice informed the attorneys that, based 

upon the testimony that had been offered, she would likely be providing an aiding 

and abetting instruction to the jury. Specifically, the trial justice remarked: 

“THE COURT: Come back. As long as we’re here, have

you read, I can’t remember whether you had something on 

that case State v Alberto Heredia and State v Manuel 

Texieira. I was upheld in both of those cases and it was 

aiding and abetting, of course. * * * I mean I’m not saying, 

you know, it may be that your guy was at home with his 

parents that night. I don’t know if you saw it—take a look 

at it. Maybe he wasn’t there.

“* * * 

“THE COURT: [W]hat would keep you from the one 

person that you found, if you have enough evidence to 

show that he was involved in that type of aiding and 

abetting enterprise, which is not a conspiracy, it is just a 

theory of recovery. * * * But you better take a look at that 

before your guy gets himself in a major jam because I very 

likely so far on this record would be charging aiding and 

abetting.” 

Ariane Fratantaro, the next witness to testify, said that on October 9, 2011, at 

around midnight, she was at a party with a bonfire with a group of friends at the 

power lines in Burrillville. At a certain point, she recounted, a fight broke out 

between former hockey players from the Burrillville and Ponaganset high schools

and Mr. Rogler was hit in the head with a beer bottle. She said that some other men 

“jumped on top of” Mr. Rogler and then someone called Mr. Gieck. 
- 10 -

Ms. Fratantaro testified that, when Mr. Gieck arrived with Ms. Baumlin, he 

tried to help Mr. Rogler but instead ended up on the ground with “about eight people 

or more on top of him and he was being kicked and punched.” She testified that all 

of the people who were attacking Mr. Gieck were wearing shoes or boots. 

She said that she went to the Burrillville police station the next morning and 

that, like the previous witnesses, she identified the person shown on a television 

monitor as one of the people who had kicked Mr. Gieck in the face the night before. 

However, Ms. Fratantaro was unable to make a courtroom identification of 

defendant. 

Next, Sergeant William Lacey of the Burrillville Police Department testified 

that on the night in question he was working as a patrol officer, and, after receiving 

a call about an assault, he went to the power lines area and conducted an 

investigatory vehicle stop on a pickup truck. He identified defendant as the operator 

of that vehicle. He testified that he could see blood on defendant’s clothing and that 

he smelled the odor of alcohol. He testified that Officer Hughes was called to the 

scene to perform a field sobriety test on defendant, and Officer Hughes arrived 

within ten minutes. 

Officer Hughes, of the Burrillville Police Department, then testified. He said 

that, on that same date, at 3:40 a.m., he was called upon to assist another officer at a 

traffic stop. He testified that defendant was the operator of the stopped vehicle, that 
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defendant’s eyes were bloodshot and watery, and that he could smell a strong odor 

of alcohol. He testified that defendant denied that he had been drinking or that he 

had been involved in an assault earlier that night. However, after he conducted a 

field sobriety test on defendant, Officer Hughes concluded that defendant was 

incapable of safely driving his vehicle and defendant was brought to the police 

station for processing. 

Officer Hughes further testified that six individuals, including the victim in 

this case, Mr. Gieck, came to the station the next morning to report an assault. He 

testified that Mr. Gieck was able to identify defendant as one of the people who had 

kicked him. Officer Hughes further testified that Ms. Baumlin, Mr. Rogler, Ms.

Rogler, and Ms. Fratantaro also identified defendant as one of the people who had 

kicked Mr. Gieck the night before. 

The last witness to testify was Captain Michael McGrane of the 

Oakland/Mapleville Fire Department. Captain McGrane said that he transported 

defendant to the Landmark Medical Center for treatment for right hand pain on 

October 9, 2011. He testified that defendant had told him, “I hit someone earlier in 

the day.” A notation in the records from Landmark Medical Center by an 

emergency-room nurse said that defendant had related that he “punched a guy in the 

head a lot of times[,]” and another notation that stated that defendant, “punched a 

person last night prior to swelling to right hand[.]”
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After the parties rested, the trial justice instructed the jury. In so doing, she 

said, in pertinent part, that:

“Now, there are two different ways the [s]tate can meet its 

burden of proof with respect to this charge. The first way 

the [s]tate can prove the defendant guilty of assault with a 

dangerous weapon is by proving that the defendant 

himself committed the physical act of assaulting Mr. 

Gieck.

“The second way that the [s]tate can prove that the 

defendant committed the criminal offense of assault with 

a dangerous weapon against Mr. Gieck is by proving that 

he aided and abetted another in committing the criminal 

offense of assault on Mr. Gieck with a dangerous weapon 

(a shod foot), a foot with a shoe on it, okay, that is the 

situation, even if he did not personally kick Mr. Gieck with 

his own shod foot. 

“For you to determine whether the [s]tate has met its 

burden of proof, you will need to understand what certain 

terms mean when used in the legal sense.”

She further instructed that:

“If the state either proves that defendant committed the 

offense as the ‘principal actor’ or committed the offense 

under the legal theory of ‘aiding and abetting,’ then you 

must find the defendant ‘guilty’ as to the charge in Count 

1. However, if the [s]tate fails to prove beyond a 

reasonable doubt that defendant committed the offense 

either as ‘principal actor’ or under the theory of ‘aiding 

and abetting,’ then you must find the defendant ‘not 

guilty’ as to the charge in Count l.” 
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She proceeded to give further instructions as to what it meant for defendant to 

have committed the offense in question as the principal actor and what it meant for 

defendant to have aided and abetted in the commission of the offense. 

After the jury charge was delivered, defendant objected to the aiding-andabetting instruction.2

 The trial justice overruled defendant’s objection. 

 

2 Specifically, defendant made the following objection:

“Your Honor, as the [c]ourt I’m sure anticipates, because 

of communications we’ve had previously, I’m objecting to 

the fact that the [c]ourt gave a so-called ‘aiding and 

abetting instruction’ on the charge of Assault With a 

Dangerous Weapon. First of all, Judge, I don’t see, 

respectfully, any evidence whatsoever of aiding and 

abetting. It’s noteworthy that aiding and abetting is not a 

lesser included offense within the crime of assault with a 

dangerous weapon. Aiding and abetting, as the [c]ourt 

noted in its instructions to the jury, generally refers to one 

who assists, aids, counsels, orders, procures, et cetera, et 

cetera. In this case, if the jury accepts the fact that Mr. 

Haffner was in fact or is in fact guilty beyond a reasonable 

doubt, it can only do so as a ‘principal.’ All of the 

evidence seems to suggest that he in fact is a principal in 

this case. I recognize from some research that it doesn’t 

matter that his confederates, if you will, the other people 

who kicked Mr. Gieck, punched him, et cetera, are not 

named or identified from the [s]tate’s witnesses. But I’m 

concerned that this aiding and [a]betting instruction will 

confuse the jury. Respectfully, it is not an appropriate 

charge to give this jury especially because the only 

evidence is that he was as a principal. It is a one count 

Information, Assault With a Dangerous Weapon, to wit, a 

shod foot. I didn’t hear a single witness say, for example, 

Mr. Haffner held Mr. Gieck down, or that he was 

otherwise egging on anybody else to kick him. So for 
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After deliberating, the jury returned guilty verdicts on both counts of the 

information.3 On the charge of assault with a dangerous weapon, defendant was 

sentenced to five years, with eighteen months to serve and the remainder of the 

sentence suspended, with probation; and on the DUI charge, he was given a oneyear sentence, the entirety of which was suspended, with probation, to run 

concurrently with the first sentence.4 

II

Discussion 

On appeal, defendant makes two arguments. The first is that the trial justice 

erred in charging the jury that it could convict defendant as either a principal or as 

an aider and abettor. He maintains that the evidence supported a finding of criminal 

liability only as a principal. Second, defendant argues that the trial justice erred 

during the Frye hearing because she failed to put him on notice that he was exposed 

to criminal liability for aiding and abetting. 

 

those reasons, and because a person cannot be both a 

principal and an aider and abettor, I do object to that 

instruction.” 

3 The defendant moved for a new trial, but the motion was denied. 

4 The defendant does not press an appeal with respect to his conviction for DUI.
- 15 -

A

Aiding and Abetting

As noted above, defendant first maintains that the jury instruction on aiding 

and abetting was given in error because there was no evidence that defendant had 

assisted another person in kicking the victim with a shod foot. The defendant also 

claims that the substance of the aiding-and-abetting instruction that the trial justice 

gave was erroneous in two respects. The defendant argues both that, in 

contravention of the holding of the United States Supreme Court in Rosemond v. 

United States, 572 U.S. 65 (2014), the instruction failed to advise the jury that 

defendant would have had to have acted before the felony assault took place in order

to assist another in the commission of the act of felony assault, and that the trial 

justice failed to remind the jury that an accidental or unintentional kicking of the 

victim, by a person other than defendant, would not constitute a felony assault. 

“It is well established that we review challenged jury instructions in a de novo 

manner.” State v. Delestre, 35 A.3d 886, 891 (R.I. 2012). “In conducting that 

review, ‘it is our role to examine the instructions in their entirety to ascertain the 

manner in which a jury of ordinary intelligent lay people would have understood 

them[.]’” Id. (quoting State v. John, 881 A.2d 920, 929 (R.I. 2005)). It is well-settled 

that “this Court will not examine a single sentence apart from the rest of the 

instructions, but rather the challenged portions must be examined in the context in 
- 16 -

which they were rendered.” Id. (quoting State v. Kittell, 847 A.2d 845, 849 (R.I. 

2004)). 

“In a case such as this, when we review a trial justice’s challenged jury

instructions, we will uphold them when they ‘adequately cover the law.’” Delestre, 

35 A.3d at 891 (quoting State v. Ensey, 881 A.2d 81, 95 (R.I. 2005)). “However, 

‘even if we conclude that a jury instruction was erroneous, reversal is warranted only 

if a jury could have been misled to the prejudice of the complaining party.’” Id.

(quoting State v. Adefusika, 989 A.2d 467, 475 (R.I. 2010)); see State v. Ventre, 910 

A.2d 190, 197 (R.I. 2006) (“If we are persuaded that the jury could have been misled 

by an erroneous charge to the resultant prejudice of the complaining party, reversal 

is warranted.”).

The state bears the burden of proving “every element necessary to constitute 

the crime charged beyond a reasonable doubt.” State v. Hazard, 745 A.2d 748, 751 

(R.I. 2000). “A jury instruction relieving the state of this burden violates a 

defendant’s due process rights.” Id. General Laws 1956 § 11-1-3 provides that a 

person who aids or abets “another to commit any crime or offense, shall be 

proceeded against as principal * * * and upon conviction shall suffer the like 

punishment as the principal offender is subject to by this title.” The law is wellsettled “that one who aids and abets in the commission of the crime and is also 
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present at the scene may be charged and convicted as a principal.” State v. McMaugh,

512 A.2d 824, 831 (R.I. 1986). 

In this case, defendant objected at trial to the delivery of the aiding-andabetting instruction by the trial justice. In State v. Davis, 877 A.2d 642 (R.I. 2005),

we recognized that a “defendant’s manner of participation, whether as a principal or 

[as] an aider or abettor, is not an element of the crime.” Davis, 877 A.2d at 648.

Accordingly, pursuant to the holding in Davis, the prosecution is not required to 

persuade a unanimous jury beyond a reasonable doubt with respect to the manner in 

which a defendant participated in a crime. See id. Our holding in that case was based 

on the pertinent statutory language of § 11-1-3, which “eliminates the legal 

distinction between [1] the commission of a crime as a principal and [2] aiding and 

abetting another in the commission of a crime[.]” Id.; see 23A C.J.S. Criminal Law

§ 1883 at 508 (2006) (noting that “a jury need not unanimously find that a defendant 

acted either as a * * * perpetrator or an aider and abettor [because the] * * * statute 

governing * * * aider and abettor liability merely establishes a separate basis of 

liability, but not a separate crime or element of the underlying crime”). 

We note that, at trial, defendant had objected only to the rendering of an 

aiding-and-abetting instruction, but he offered no challenge to the substance of the 

instruction. Because he did not assert any objection to the substance of the charge 

at trial, he has waived any challenge to the actual content of the instruction. It is 
- 18 -

well-settled that, when a defendant fails to object to a jury instruction in the Superior 

Court, he or she waives the right to appeal the verdict based on that instruction. See

Super. R. Crim. P. 30; State v. Flori, 963 A.2d 932, 937 (R.I. 2009). “Rule 30 of the 

Superior Court Rules of Criminal Procedure is crystal clear * * * that ‘[n]o party 

may assign as error any portion of the charge or omission therefrom unless the party 

objects thereto before the jury retires to consider its verdict, stating distinctly the 

matter to which the party objects and the grounds of the party’s objection.’” State v. 

Andrade, 209 A.3d 1185, 1198 (R.I. 2019) (quoting Super. R. Crim. P. 30).5 

Thus, we turn our attention to whether the evidence justified an instruction on 

aiding and abetting. As noted supra and explained in Davis, aiding and abetting is 

not a separate element of a charge of which a defendant must be aware in advance 

and which must be separately proven by the state beyond a reasonable doubt. See 

Davis, 877 A.2d at 648. Rather, it is a theory of the manner in which a crime was 

committed. Id. In this case, we conclude that such an instruction was indeed 

 

5 However, we pause to note that we discern no error in the substance of the jury 

instruction. The defendant places much reliance on Rosemond v. United States, 572

U.S. 65 (2014) where the defendant in that case was charged with and convicted of 

violating 18 U.S.C. § 924(c), which prohibits using or carrying a firearm “during 

and in relation to any crime of violence or drug trafficking crime[,]” as well as aiding 

and abetting that offense under 18 U.S.C. § 2. Rosemond, 572 U.S. at 68. However, 

in Whitaker v. State, 199 A.3d 1021 (R.I. 2019), we held that “Rosemond plows no 

new constitutional ground and applies only to 18 U.S.C. § 924(c) and the federal 

aiding-and-abetting statute. It has no impact on state law.” Whitaker, 199 A.3d at

1029. Therefore, defendant’s reliance on such caselaw is misplaced. 
- 19 -

appropriate. Several witnesses described a chaotic scene in which defendant was 

one of several individuals who were simultaneously attacking Mr. Gieck, thus 

making it difficult to determine which specific attacker delivered which specific 

blows to Mr. Gieck’s body and face. The testimony made it clear that defendant was 

a participant in “a community of unlawful purpose at the time the act was 

committed.” Whitaker v. State, 199 A.3d 1021, 1029 (R.I. 2019) (brackets omitted) 

(quoting Delestre, 35 A.3d at 895). Significantly, we have held that aiding-andabetting instructions were appropriate based on facts similar to those in this case. 

See State v. Whitaker, 79 A.3d 795, 807 (R.I. 2013) (trial justice properly instructed 

the jury on aiding and abetting based on testimony that the defendant arrived at the 

apartment armed, that he expressed interest in taking the chain from an individual at 

the party, that the co-defendant took the chain in question, and that the defendant 

drew a gun and aimed it at a group of people during struggle); DeCiantis v. State, 

599 A.2d 734, 735 (R.I. 1991) (aiding-and-abetting instruction proper based on 

evidence of the defendant’s presence at the scene of a murder in which others had 

participated). As such, we conclude that the trial justice did not err in imparting such 

an instruction to the jury.
- 20 -

B

Frye Hearing

The defendant next argues that the trial justice erred when she conducted the 

Frye hearing because defendant was not placed on notice that he was exposed to 

criminal liability for aiding and abetting. He asserts that, because the Frye hearing 

lacked such a dialogue, he could not have made a voluntary, knowing, and intelligent 

decision to reject the state’s plea offer at that time. Before we can consider the merits 

of defendant’s arguments, however, we first must address whether this issue is 

properly before this Court.

As we have said on innumerable occasions, “a litigant cannot raise an 

objection or advance a new theory on appeal if it was not raised before the trial 

court.” State v. Bido, 941 A.2d 822, 829 (R.I. 2008). This directive “will not be 

disturbed unless ‘basic constitutional rights are concerned.’” State v. Gomez, 848 

A.2d 221, 237 (R.I. 2004) (quoting State v. Donato, 592 A.2d 140, 141 (R.I. 1991)). 

In those cases, “the alleged error must be more than harmless, and the exception 

must implicate an issue of constitutional dimension derived from a novel rule of law 

that could not reasonably have been known to counsel at the time of trial.” State v. 

Breen, 767 A.2d 50, 57 (R.I. 2001). After a careful review of the record, we 

conclude that defendant did not articulate an objection, nor did he request that the 
- 21 -

trial justice conduct a second Frye hearing after she alerted the parties that, after 

listening to evidence, she was inclined to instruct on aiding and abetting. 

Additionally, the exception to the raise-or-waive rule is of no assistance to 

defendant. A Frye hearing is not “an issue of constitutional dimension derived from 

a novel rule of law that could not reasonably have been known to counsel at the time 

of trial.” Breen, 767 A.2d at 57.

We add that, even if the defendant had raised the issue of a second Frye

hearing in the trial court, our review of the record fails to reveal any error. There is 

no dispute that the state made a plea offer to the defendant, that a hearing was held 

during which the trial justice made the defendant aware of the offer and was satisfied 

that he understood the elements of the crimes of which he was charged, and that the 

defendant chose to reject the state’s offer.6 As we have explained supra, aiding and 

abetting is not an additional element of the crime of assault with a dangerous 

weapon, such that the defendant needed to understand its nature in order to properly 

 

6 The defendant’s reliance on Lafler v. Cooper, 566 U.S. 156 (2012), is also 

misplaced. Lafler involved a collateral attack on a conviction claiming ineffective 

assistance of counsel, not a direct appeal, as is the case here. 
- 22 -

consider the state’s offer.7 Therefore, the trial justice did not err in the manner in 

which she proceeded during the Frye hearing.8 

III

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of conviction. 

The record shall be remanded to the Superior Court.

 

7 At oral argument, the defendant’s counsel conceded that there is no caselaw to 

support a contention that a trial justice has a duty to conduct a second Frye hearing 

after sufficient evidence has been presented to instruct the jury on another theory of 

liability. 

8 Furthermore, as noted by the defendant’s counsel in the midst of the Frye hearing, 

the defendant had proceeded through “approximately three quarters of this case 

before [a different trial justice]” and therefore stood before the court at that juncture 

“with the benefit of that experience, hearing the witnesses testify, for what it is 

worth.” 
SU-CMS-02A (revised June 2020)

STATE OF RHODE ISLAND 

SUPREMECOURT– CLERK’S OFFICE

Licht Judicial Complex

250 Benefit Street

Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Nicholas Haffner.

Case Number SU-2018-0021-CA

(P2/12-216A)

Date Opinion Filed December 17, 2020

Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

Written By Associate Justice Francis X. Flaherty

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Netti C. Vogel

Attorney(s) on Appeal

For State:

Christopher R. Bush

Department of Attorney General

For Defendant:

Edward C. Roy, Jr., Esq.